Divorce FAQ's by (612)321-9402

When Does My Paycheck Stop Being Joint?

In Minnesota, there is no particular age at which a child gets to decide which parent he wants to live with. Generally, the older the child, the more weight the child's preference carries, whether in the initial custody determination or in the context of a motion to modify custody (See Ross v. Ross, 477 N.W.2d 753, 756 (Minn.Ct.App. 1991) [citing State ex rel. Feeley v. Williams, 222 N.W.2d 927, 928 (Minn. 1929) (preference of 12½-year-old given great weight in maintaining her custody with aunt and uncle)]). Still, the child's preference alone is an insufficient basis for modification of custody (Geibe v. Geibe, 571 N.W.2d 774 (Minn.Ct.App. 1997) (motion for modification of custody denied without a hearing despite 17-year-old's preference to change custody)). There must be a showing of endangerment, at least on an emotional level, in order to modify custody (Harkema v. Harkema, 474 N.W.2d 10, 14 (Minn.Ct.App. 1991) (reversing trial court's denial of evidentiary hearing in case involving emotional abuse) (citation omitted)). The child's preference is an important factor and often a sine qua non of a showing of endangerment.

Eric C. Nelson

Eric C. Nelson

This answer supplied by:(612)321-9402 At What Age May the Child Decide Where He Wants to Live?

Often times fathers come into my office thinking that a fight for custody is futile because of bias. Conversely, mothers often make the mistake of thinking that an award of custody to the mother is virtually guaranteed. Neither is true.

Legally, there can be no discrimination based on the sex of the parent. For a father willing to bear the time and expense of the contest, chances for custody are more or less equal to those of the mother, all else being equal. Having said that, I do think there is some lingering bias, even though judges and custody evaluators and guardians ad litem will always deny it. Often I do not believe it even occurs on a conscious level. Yet there is a gut feeling one gets, representing a father, that the job is just a little more difficult.

I'll give a common situation as an example. The father wants joint physical custody. The mother wants sole physical custody. The parties agree more or less on the parenting time schedule, so the custody label is more about child support than anything else. In this situation, it always seems to be the father who is blamed for seeking the joint physical custody label solely to reduce child support, rather than the mother who is blamed for seeking the sole physical custody label solely to increase child support.

In conclusion, my advice to fathers is that they should not despair. If the children would be better off in the father's custody, that is worth fighting for, and is winnable. I have gotten many fathers custody, even in the most dismal of predicaments. For mothers, my advice is to take nothing for granted. Against a determined father, the loss of custody is a very real possibility which you should take very seriously if custody is important to you.

Eric C. Nelson

Generally speaking, no Court Order is required for the sole physical custodian to move the residence of children within the state. However, if the move as a practical matter would necessitate a change in the court-ordered parenting time schedule, or if the parties have joint legal custody and the move would involve a change of schools, then it is wise to bring a motion at or before the time of the move.

If the parties have joint physical custody, and the move would effectively prohibit a joint physical custody shared-parenting arrangement, then a motion would be required before the move could take place. If the proposed move would be tantamount to a modification of custody, the move would need to meet the same strict standard required for custody modification in order to receive the court's permission (Lutzi v. Lutzi, 485 N.W.2d 311 (Minn.Ct.App. 1992)).

Eric C. Nelson

For married parties with children born during the marriage, both parties have joint legal and physical custody until the Court orders otherwise. Thus, either parent has the right to take the children, and the other parent has the right to take them back, and so forth. This can lead to a lot of game-playing and tugs-o-war which are obviously harmful to the children.

The first opportunity for the Court to decide custody is normally at the temporary relief hearing. In Hennepin County, this can easily be two months or more from the date of filing. In other counties, it can be much speedier, as in Dakota or Scott County, where a temporary relief hearing date is normally available within about 3 weeks. Once the motions for temporary relief are heard, the Court has 90 days to rule, although they normally get temporary orders out within two or three weeks.

Prior to the temporary relief hearing, as indicated above, both parents have custody. One the one hand, it is a disadvantage to agree to a parenting time schedule - even on an interim basis - which is less than what you want on a permanent basis, because even though this is not legally relevant, I have seen judges swayed by arguments about who has had the children prior to the court appearance. On the other hand, children shouldn't have to witness their parents fighting at the day care center doors about who gets to take them home. Sometimes the best approach is just to share the time 50-50 for the sake of compromise, until the matter is heard by the Court. If for the sake of the children you feel it is best not to fight about it, it is very important to send written notice to your spouse explaining your strong objection to the interim arrangement, e.g.:

"Dear Spouse: I very much regret that we have been unable to agree to a suitable interim parenting time schedule for the children pending the temporary relief hearing scheduled for xx/xx/xx. In order to spare the children the experience of our conflict over this issue, I will abide by the schedule you have unilaterally dictated while we await court action. Nevertheless, I want to make clear my strong objection to this interim schedule, which we both know is not in the children's best interests."

For unmarried parents, the mother has sole legal and physical custody unless and until the Court orders otherwise, pursuant to Minnesota Statute section 257.75, subdivision 3. Nevertheless, a mother should be careful before denying parenting time, because one of the many factors which the court considers in determining permanent custody is "the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child." Minn. Stat. § 518.17, Subd. 1(13).

Eric C. Nelson

In equal numbers, prospective clients come to me either excited about a perceived ace-in-the-hole because of the other spouse's adultery, or worried about his or her own adultery. Neither attitude is warranted. The Courts could care less about anyone's adultery. Half the divorces they see involve adultery. In fact, raising the issue invariably backfires, making the accuser appear obsessive and jealous.

Eric C. Nelson

In order to commence a divorce in Minnesota, one or the other spouse must be a resident or domiciliary of Minnesota for 6 months immediately preceding commencement of the divorce (Minnesota Statute section 518.07).

However, there is no waiting period or mandatory separation period required in order to proceed with a divorce, assuming the residency requirement is satisfied

Eric C. Nelson

From time to time a client will come to me, excited that he or she has figured out a sure-fire way to win custody, because he or she has personally diagnosed the spouse with Borderline Personality Disorder (BPD), Parental Alienation Syndrome (PAS), or some other mental illness.

Unfortunately, nobody is going to take your word for it. For such an argument to carry any weight whatsoever, you will have to obtain a diagnosis from a qualified professional. This may sometimes be accomplished through the custody evaluation process. Other times, you may need to hire your own expert.

Eric C. Nelson

The generally accepted view of the courts is that children are to be kept out of the divorce as much as possible. Discussions of court proceedings with the children are discouraged.

Having said that, children naturally wonder and ask questions to resolve their own anxiety at a time when their parents have split up, and their family unit and daily routines have dramatically changed. Simply proceed with caution, and be careful not to place the children in the middle of any disputes

Eric C. Nelson

Emptying the joint bank checking or savings account in anticipation of divorce would ordinarily be frowned upon, unless you had a very justifiable reason. Be warned, however, that your spouse may beat you to it. I've seen joint bank accounts cleaned out by the other party more than once, and many times there is unapproved spending by the other spouse as the divorce approaches. All things being equal, I generally recommend taking half of the joint account money and depositing it into an individual account. If you trust your spouse enough to keep your accounts joint while the divorce proceeds, I respect that, but don't say you weren't warned.

Likewise, it is a useful precaution to close or otherwise terminate additional borrowing authority on any joint credit cards, lines of credit, or other joint debt accounts, when a divorce appears imminent.

Eric C. Nelson

It can be difficult for a client to know whether his or her lawyer is performing well or not. Sometimes even the best of lawyers does not achieve the desired result, and it may be due to a difficult set of facts, a bad judge and/or custody evaluator or guardian ad litem, or unrealistic expectations. There are some clear indications of bad lawyering, however, which are objectively obvious:

Poor communication (lawyer doesn't return phone calls or emails on a same day or at least 1-day turnaround without good reason, or doesn't copy client on important correspondence, orders, pleadings, etc.).

Neglect (lawyer simply doesn't work on case in a reasonably timely manner).

Lawyer misses important deadlines.

If any of the above is true, one should seriously consider obtaining new counsel.

Some considerations before firing your attorney, however, are:

Is the lawyer being paid? If there is plenty of unearned money in your trust account to pay for your lawyer's pending workload, this shouldn't be a factor. However, if the initial retainer has been used up, and an additional retainer has not been provided, or you have not promptly paid a bill from your attorney, this may be at the root of your lawyer's lack of attention to your case. ).

Sometimes it is better to keep a lawyer, even with problems, if you are too close to a trial, hearing, or other event for the replacement lawyer to get up to speed in time. .

When and if you do terminate your lawyer, you have the right to your file back in a timely manner. You cannot be billed for the copying of your file upon return unless the Fee Agreement so provides.

Eric C. Nelson

Clients often ask whether they should move out of the marital home prior to or during the commencement of divorce proceedings. The answer is that it depends. Generally speaking, if child custody, parenting time, or possession of the home might be an issue in the proceedings, I advise against it. Although no legal precedent is created by moving out, the lawyer for the remaining occupant routinely argues that:

Custody should be awarded to my client because he or she is already living in the house which has been the children's home, so let's leave well enough alone and not disrupt the situation with more moves.

Possession of the home should be awarded to my client because he or she is already living there, and the other spouse has already moved out, so why force them to move all over again?

Such arguments are made both in support of temporary as well as permanent relief. Such arguments do not always carry the day, but it is often a consideration that influences judges, even if they deny it. If custody is in issue or you really want to keep the house, try to stay put until the temporary relief hearing, which is your first opportunity to legally compel the other party to move out.

If you do need to move out of the home immediately because it is an abusive or otherwise insufferable situation for yourself or the children, the following precautions should be considered:

If custody is in issue, it is generally preferable that you either move the children out with you - provided that would not too obviously disruptive - or at least be sure to spend as much time with them in your care as you are requesting in the divorce. Otherwise, the longer you acquiesce to a pattern of parenting time that is less than you desire, the more of an argument the other party will make of it against you. Often arguments like the following are heard:

"Your Honor, the Petitioner moved out four months ago, and since then he has only had the children every other weekend, by his own acquiescence. Now all of a sudden he wants custody [or more parenting time, as the case may be]. This is clearly a disingenuous request which should be summarily denied. The schedule the parties have been following has worked well for the children, and for the sake of their sense of stability and continuity, it should continue." :

After the elapse of a period of time, nobody much cares if the reason you only had every other weekend was because the other parent truly wouldn't "let" you have more time. Although that may very well be the case, and although you may have let your spouse control the situation in order to spare the children the trauma of parental conflict, in my experience the courts are more swayed by the pattern of contact rather than by these "excuses." The wisdom of Solomon does not apply.

Take with you all of the household goods and furnishings, and other items of personal property which you want to have, and inventory what you take. Although it is not a law, the old adage "possession is nine tenths of the law" is very applicable here. The reason boils down to the fact that litigating personal property issues is usually prohibitively expensive, because it normally costs more to litigate than the stuff is worth. So if you ever want to see it again, it is much simpler and easier to take it with you when you leave. [Caveat: don't get too greedy. If you empty the place out and leave the spouse and children to sleep and eat on a bare concrete floor, you will not look good].

Eric C. Nelson

Don't make your attorney justify every single decision. We're happy to do it, but it takes time, and time costs you money. The point is not for you to acquire a law school education. The point is to represent your interests with excellence and efficiency. If you can't take your lawyer's word for something, it's time to get a new lawyer.

In divorces, there is inevitably a process of "discovery," where each party requests information and documents from the other party. Sometimes this is informal and limited. Other times it is formal, comprehensive, and terribly time-consuming. In most cases, however, it is much cheaper for you to just get the information and documents, than to pay your lawyer to argue with the other side about it. Also, don't trickle it in piecemeal to your attorney if at all possible. Get it all together into one package, as complete and as organized as possible.

Be prompt. Courts are slow. Many attorneys, sadly, are chronic procrastinators. Custody evaluators and Guardian ad Litems are slow. If you're slow too, it compounds the problem. Furthermore, the quicker you can be in responding to whatever your attorney asks of you, the more likely it is that you'll be able to settle your case sooner and at less expense. By acting quickly, attorneys are able to take charge of a divorce process, rather than being driven by court deadlines and various hearings and other requirements which might be avoided just by staying ahead of the game.

Eric C. Nelson

The date on which earnings (including retirement contributions and other income) becomes separate property again, is the so-called "valuation date" (Minn. Stat. § 518.54, Subd. 5). The valuation date is the date of the initially scheduled prehearing settlement conference, unless the parties agree to a different date, or the court finds that a different date is fair and equitable (Minn. Stat. § 518.58, Subd. 1). In my experience, the Court seldom exercises its discretion to use a different date. One situation warranting a different date is where the parties have been separated for years or at least several months prior to commencement of the divorce, and have been living separately, with separate accounts, insurance, bills, etc., during the separation period.

In Hennepin County, the default valuation date is the date of the Initial Case Management Conference, which normally occurs within three weeks from filing of the divorce.

If you are concerned about ongoing earnings continuing to be marital in nature, then it is in your interest to lock in the default valuation date by filing the case as soon as possible and shepherding it along swiftly. For example, if you earn six figures, but your spouse is a stay-at-home unemployed parent, it is to your advantage to file the divorce first, and then work on settlement, rather than to mediate and negotiate for several months prior to filing.

Case in point: I had a client once who "contrary to my advice" chose to engage in settlement negotiations for several months prior to commencement and filing of the divorce, rather than filing first and then working on settlement. Settlement negotiations did not bear fruit, and because of the delay, the valuation date did not occur until much later than it otherwise would have, and several tens of thousands of dollars of my client's income were treated as marital, which otherwise would not have been.

The same analysis applies to debts. Debts incurred prior to the valuation date are generally marital, regardless of who incurred them. Debts incurred after the valuation date are generally separate. If your spouse is charging up the credit cards like a drunken sailor, it is in your interest to expedite the divorce proceedings to lock in the default valuation date.

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